General delivery conditions for contracts of purchase, contracts for works and contracts for labor and material of GfG Dortmund
§ 1 General Information
- The following terms and conditions apply exclusively for all contracts concluded with the company GfG.
- The respectively valid versions of GfG’s GTC also apply to any follow-up business. Expressive agreement on or mention of the GTC upon concluding a new contract is not required.
- The company GfG hereby disagrees to any contrary, deviating or additional terms of the customer with reference to his terms and conditions; deviating terms of the customer are only applicable if they have been confirmed by GfG in writing.
- Our terms only apply to any business relations with companies as defined in § 14 (1) German Civil Code (BGB) as well as with legal entities under public law.
§ 2 Quotations, Orders
- Quotations by GfG as well as the prices, delivery options and delivery terms communicated in catalogues, brochures or other printed matters or in any other way are always non-binding.
- Any additional documents enclosed with the quotations, such as illustrations, drawings, information on weight or performance etc. do not constitute an assurance of properties. They are merely performance specifications.
- If an order can be qualified as an application for the conclusion of a contract, GfG reserves the right of a four-week term of acceptance.
- A customer’s orders are only considered ‘accepted’ when GfG has confirmed them in writing. If GfG does not confirm a contract in writing but instead uses oral confirmation (in person or by telephone), the invoice issued by GfG is to be considered as the confirmation.
§ 3 Prices
- The prices of the company GfG are stated in Euros ex works plus the corresponding VAT, excluding packaging, freight, customs, insurance and assembly which are going to be invoiced separately.
- For all orders - including on call purchase orders as well as successive delivery contracts - with a delivery term of more than four months after conclusion of the contract, GfG may demand the prices and ancillary costs applicable on the date of delivery.
- If any additional or increased fees or taxes arise between the conclusion of the contract and the delivery due to modified legal norms - in particular customs, sales taxes - the company GfG is entitled to invoice such fees and taxes.
- For new orders by the same customer, GfG is not bound to prices quoted in previous orders. The decisive criterion are the prices and terms stated in the order confirmation.
§ 4 Terms of Delivery
- Stated delivery dates or delivery terms are always unbinding, unless they were expressively agreed upon in writing.
- When agreeing on a delivery time, the compliance with the term requires the timely receipt of all documents to be delivered by the customer, required authorizations, approvals, the timely clarification and approval of the plan as well as, if applicable, the compliance with the agreed payment terms and other obligations. If these conditions are not complied with in time, the delivery term will be extended appropriately.
- Furthermore, our delivery obligation is always subject to the prerequisite that we ourselves are supplied in a timely and proper manner.
- The terms of delivery are considered as being complied with - for deliveries without installation or assembly - if the dispatch-ready shipment is sent or picked up within the agreed delivery or performance deadline. If the delivery is delayed due to reasons the customer is responsible for, the time of delivery will be considered as being complied with upon notification of the readiness for dispatch within the agreed term or upon the execution of services as soon as they have been performed within the agreed time.
- Delivery impediments due to force majeure or because of unforeseeable events that are out of GfG’s control, including (among other breakdowns) strike, lockout, government ordinances, subsequently effected cessation of export or import possibilities as well as our reservation in relation to our own supply according to paragraph 3, shall for the duration and extent of their effects, exempt GfG from the obligation to observe the previously agreed delivery times.
- If the agreed delivery time is exceeded and unless there is no delivery impediment referred to in the above paragraph 5, GfG’s customer has to grant a reasonable grace period of at least two weeks. If the company GfG culpably does not comply with this grace period then the customer is authorized to withdraw from the contract; however, the customer is not authorized to enforce claims for damages arising from non-fulfilment or arrears, except in cases of intent or gross negligence on the part of GfG.
§ 5 Dispatch
- Deliveries by GfG are generally affected ex works as well as at the risk and for the account of the customer. This also applies in the case of freight paid shipments and shipments incl. assembly and regardless of the type of transportation.
- Transport insurance is only provided upon express demand of the customer. Any costs arising therefrom shall be at the expense of the customer only.
- The place of dispatch, the transport route and the type of transportation are decided by GfG at reasonable discretion and without liability for the cheapest and fastest way of transportation, unless stated otherwise in a written agreement.
- If a delivery is ready to be shipped but is delayed due to reasons affected by the customer as well as in the event of default in acceptance or the customer breaching their cooperative obligations in another way, the risk of accidental loss or deterioration of the delivered goods passes to the customer upon receiving the written notice of readiness for dispatch or from the point in time at which the customer induced the delay. In these cases, GfG will store the goods at the customer’s expense and risk. Risks attributed to storage and safe custody lie with the customer.
- If the dispatch or delivery is delayed at the customer’s request, GfG is entitled to invoice warehouse charges amounting to 0.5% of the invoice amount for each commenced month, beginning one month after notification of the readiness for dispatch; the warehouse charges are limited to 5 %, unless higher costs can be proven.
- The customer must accept the delivered goods, even if there have been changes in the delivery resulting from order processing.
- GfG has the right to deliver in reasonable instalments.
§ 6 Duties of Inspection and Complaints
- The customer is obliged to check the goods immediately upon receipt regarding their quantity, quality as well as warranted characteristics. The complaint needs to be made by the end of the working day following the delivery day of the goods or their acceptance. In the case of hidden defects which initially remained undiscovered despite a proper initial investigation, a different time limit regulation applies: The complaint must then be made within five working days after delivery.
- The complaint must be submitted to GfG in writing within the above time limits. It has to clearly state the kind and extent of the alleged defect. The customer is obliged to keep the rejected goods ready for inspection at the site of examination so that we, our suppliers or experts appointed by us may inspect them.
- Any goods the customer does not submit a complaint for within the above mentioned parameters are considered to be approved and accepted.
§ 7 Warranty, Limitation of Liability
- If the notice of defect is justified, GfG is entitled to choose the form of required subsequent fulfilment (rectification or replacement delivery).
- The customer has no further rights and claims. In particular, the company GfG is not liable for loss of profit, for subsequent damages, that have not occurred on the delivered goods as such, as well as for any other financial losses of the ordering party. The aforementioned limitations on liability do not apply:
- for damages to life, body or health resulting from our own intentional or negligent violation of duties or resulting from an intentional or negligent violation of duties,
- for damages, which are due to a grossly negligent breach of duty,
- if and insofar the violated obligation which is indispensable for the attainment of the contract purpose (cardinal obligation) and the damage was foreseeable,
- if we fraudulently conceal a defect or have assumed a guaranty for the condition of the delivery item as well as
- for a liability in accordance with the German Product Liability Act.
- Liability is ruled out in the event of damages which arise as a result of wrongful or negligent operation and assembly, excessive stress, unsuitable operating equipment, electronic influences or similar actions. The warranty expired, if the delivered item has been treated or modified by the purchaser or a third party as well as when safety-relevant systems are being commissioned by unauthorized persons.
- Furthermore, all consumables (e.g. sensors, batteries, filters) and wearing parts (e.g. accumulators, pumps, keyboards) are excluded from warranty.
§ 8 Payment
- Receivables to GfG must be paid within 14 days after receiving the invoice, with no time deductions, unless other payment terms have expressively been agreed upon.
- Cash discounts require a separate written agreement. If a cash discount has been arranged, this agreement is only considered to be fulfilled if payment has been received on GfG’s account before the invoice due date. GfG is entitled to amend the invoice to reflect the correct costs, including the wrongfully deducted discounts, send payment reminders or charge incorrect discounts to the customers with a subsequent invoice.
- We accept drafts or cheques only for special agreements and only as conditional payment. Any related costs, in particular costs for the cash and discount shall be borne by the customer. The company GfG expressively reserves the right to reject drafts.
- If an invoice amount is not paid within 14 calendar days after the invoice date or on any otherwise stipulated due date, GfG is entitled to charge interest for delay in the proven amount, but at no less than 9% above the basic interest rate, without the need for a specific reminder.
- If the customer is in default of payment to GfG or if there is a substantial deterioration of the financial circumstances of the customer, GfG is entitled to demand all outstanding receivables from the business relationship with the customer to be paid immediately, even if it has accepted a bill of exchange or cheque. The same applies if the customer ceases to have regular business operations, in particular, in cases of impounding and seizure, protests of notes or cheques or if payments are delayed or even stopped or if insolvency proceedings have been petitioned or for a procedure in accordance with the Insolvency Act. Furthermore, in this case, GfG is entitled to demand payments in advance or the provision of security payments as well as to withdraw from the contract. The assertion of further rights is expressively reserved.
- The customer shall have no right to set off, retention or reduction, unless the underlying counterclaims have been conclusively determined by a court or expressly acknowledged by GfG. The customer shall only be entitled to exercise a right of retention in so far as his counterclaim is based on the same contract.
§ 9 Retention of Title
- All goods delivered by GfG remain property of the company, until the customer has paid all receivables resulting from the business relationship.
- The customer is entitled to sell the goods delivered by the company in the orderly course of business. The authority granted hereunder shall cease in the cases referred to in paragraph 5 above. Furthermore, GfG is entitled to withdraw the sales authority of the customer through written notice, if the customer is in default of fulfilment of his obligations towards GfG, in particular with his payments or if other circumstances are revealed which cast doubt on their creditworthiness.
- The terms mentioned in paragraph 2 apply to the customer’s right to process the goods delivered by GfG. The customer does not gain ownership of the completely or partially produced good by processing them; processing in this sense is exclusively conducted on behalf of GfG as a manufacturer with no financial compensation under § 950 German Civil Code (BGB).
- Should the retention of title of GfG be terminated for any reason, the customer and GfG hereby agree that the title to the goods shall upon their proceeding pass to GfG, that GfG shall accept such transfer and that the customer will remain the products’ depositary free of charge.
- Goods of which GfG acquires ownership or co-ownership in accordance with the above-mentioned paragraphs 3 and 4 shall be deemed to be goods subject to reservation of title in the sense of the following provisions, as shall the goods delivered by GfG under retention of title in accordance with the above paragraph 1.
- The customer assigns any claims from resales of the goods subject to retention of title by GfG; GfG accepts this. If the goods subject to retention of title are processed products or mixed stocks which consist of only of goods by GfG and goods which either belonged to the buyer or were delivered to him by the third party only under so-called simple reservation of title, the client shall assign the entire claim from the resale of the goods to GfG. In the event of simultaneous advance assignments to GfG and other suppliers, GfG shall be entitled to a fraction of the proceeds of the sale. This is equal to the proportion of invoice value of the GfG goods compared to the other processed or mixed goods.
- Should the claims of GfG as a whole be secured beyond doubt by more than 120 % by the assignments or reservations declared above, the surplus of the outstanding accounts or the goods subject to reservation of title shall be released at the request of the client at the discretion of GfG.
- Goods, in which the company GfG acquires ownership or co-ownership pursuant to the paragraphs 3 and 4 above, shall be considered, as well as goods delivered by retention of title to ownership pursuant to paragraph 1 to be conditional goods as contemplated by the provisions set forth hereunder.
- The customer is authorized, to collect any receivables arising from the resale of goods. This authorization for collection shall become void, if the customer is no longer maintaining his business operations properly as defined in the regulation § 8 section 5. Furthermore, the company GfG can withdraw this authorization from the customer, if they are in default in fulfilling their obligations towards the company GfG, in particular with his payments or if other circumstances become known, which cause their creditworthiness to appear doubtful. When an authorization is made void or revoked by GfG, the customer shall without delay impart all information on the debtors of the assigned claims, including information and documents required for collection, to GfG.
- In the event of access by third parties to goods subject to reservation of title of GfG or the outstanding accounts assigned to GfG, the client is obliged to point out the ownership / right of GfG and to inform GfG immediately. The costs of the intervention shall be borne by the client.
- If the customer acts in a way contrary to the contractual obligations, in particular in the event of a default in payment, the customer is obliged to surrender any of the conditional goods in his possession upon first request of GfG and to assign GfG any possible surrender claims that may exist towards third parties in relation to such conditional goods. Reclaiming and seizing the conditional goods by the company shall not constitute a withdrawal from the contract.
- In cases of § 8 section 5, GfG can require the customer to disclose the receivables arising from the resale to GfG and, according to § 8 section 6, the receivables assigned to GfG and the liable parties. GfG is subsequently entitled to disclose the assignment at their discretion.
- If payments are made by draft and cheque, the delivered goods shall remain the property of GfG until they have been securely honored and credited.
§ 10 Statute of Limitation
- The customer’s claims of defect become statute-barred within one year after the passing of risks.
- Any damage claims of consumers as well as claims for damages due to death, injury to limb or health and / or claims for damages based on intentional or grossly negligent damages. The statutory terms of prescription apply in these cases. The same applies in events in which GfG is obligated to reimburse costs the customer has had to bear towards a private consumer and / or a subcontractor within the delivery chain due to the sale of a new item for the purpose of the supplementary performance (§ 478 section 2 German Civil Code BGB).
§ 11 Copyright, Confidentiality
- GfG retains all rights to title and copyright in regard to all documents such as pictures, drawings, calculations, mock-ups and data and any other documents. This fact remains unaffected by the transfer of the documents. The documents must not be made available to third parties.
- The obligation to maintain confidentiality applies in particular for any written documents which are marked as “Confidential”. Prior to forwarding them to third parties, the customer must obtain the express written confirmation of GfG.
- The customer is not entitled to reproduce or to copy the documents or technical information without the express authorization of GfG, nor to make them available to third parties or to forward and / or use such documents or information in any other way, which is contrary to the interest of GfG.
- However, the documents may be made available to those third parties to whom the company GfG has permissibly transferred the delivery and service. Drawings and other documents that are part of the offer must be promptly returned, if the contract is not awarded to GfG.
§ 12 Returns
- Returns of goods which cannot be attributed to a fault by GfG, will only be accepted in the original packaging until 6 months after delivery at the latest. Goods which have been used or further processed for order purposes are excluded from the return process. The return of goods shall be at the customer’s expense and risk. A copy of the original invoice as well as all delivered test reports and inspection records need to be included in the return. The reimbursement will be made after a corresponding inspection upon receiving the goods performed by GfG; impairments remain reserved. For such returns of goods, the company GfG will invoice a fee of 20 % of the value of goods.
§ 13 Obligations resulting from the ElektroG (Electrical and Electronic Equipment Act)
- GfG guarantees their proper registration as a manufacturer regarding the electrical and electronic devices submitted to the customer, with regard to the electrical and electronic equipment it delivers to the client, which is covered by the German law of releasing products on the market, withdrawing and disposing of Electrical and Electronic Equipment in an environmentally compatible manner (“Elektro- und Elektronikgerätegesetz” - in short: ElektroG) of 16 March 2005. Furthermore, all these devices are marked in accordance with legal requirements (clause 1). GfG also guarantees the proper execution of the required compulsory registration and reporting obligation.
- The customer shall ensure that the devices will be properly disposed of in accordance with § 11 (1) in accordance with the specifications of the §§ 11, 12 of the Electrical and Electronic Equipment Act (ElektroG), by assigning third parties if so required. The customer thus exempts GfG of all disposal-related duties for the goods according to § 10 section 2 of the Electrical and Electronic Equipment Act (ElektroG). Upon request, GfG offers to take devices back according to clause 1 ex works (Dortmund). GfG will then handle the proper disposal of the goods in the above sense.
§ 14 Place of Fulfilment, Place of Jurisdiction, Applicable Law
- The place of fulfilment is Dortmund.
- The exclusive place of jurisdiction for legal disputes is the court responsible for the registered office of GfG.
- German law shall apply to all deliveries and services. Application of the UN purchasing law is excluded.